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CASE NO.:

Appeal (civil) 907 of 2001

Appeal (civil) 908 of 2001

PETITIONER:

M.S. CHAWLA AND ORS.

Vs.

RESPONDENT:

STATE OF PUNJAB AND ANR.

DATE OF JUDGMENT: 18/04/2001

BENCH:

G.B. Pattanaik & B.N. Agrawal

JUDGMENT:

PATTANAIK,J.

L...I...T.......T.......T.......T.......T.......T.......T..J

These appeals filed by the Presidents of the District

Consumer Forum, appointed under Section 10 of the Consumer

Protection Act, are directed against the judgment of Punjab

and Haryana High Court and the question for consideration is

whether the pension amount received by these appellants in

respect of their previous services as District Judges, can

be deducted from the salary of the President of the District

Consumer Forum, fixed under the provisions of the Consumer

Protection Act and the rules framed thereunder? The

appellants approached the High Court by filing a writ

petition, challenging the legality of the Government Order

dated 25th of January, 1996, by which order it had been

directed that the pension amount of each of these appellants

should be deducted from their salary, payable as President

of the District Consumer Forum. The High Court by the

impugned judgment, dismissed the writ petition, essentially

on the ground that the appellants knew while joining the

post of President, District Consumer Forum that the pension

amount received by them as Members of the Superior Judicial

Service would be deducted from their salary and, therefore,

they having joined the post with full knowledge and without

any protest, they do not have any enforceable right under

the provisions of the Act and the Rules, as contended.

Mr. P.P. Rao, the learned senior counsel, appearing

for the appellants, raised the following contentions in

assailing the impugned judgment of the High Court:

(1) The salary of the President of the District Consumer

Forum, having been fixed under Section 10(3) of the Consumer

Protection Act, 1986 (hereinafter referred to as the Act)

read with Rule 3(1) of the Consumer Protection Rules, 1987

(hereinafter referred to as the Rules) and there being no

provision for deduction of the pension, which such President

had been drawing in respect of the past services rendered,

the Government is not entitled to issue an Administrative

Order to that effect and, therefore, the Order directing

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deduction of pension is illegal. (2) Pension being neither

a bounty nor a matter of grace depending upon the sweet will

of the employer, as has been held by this Court in the

Constitution Bench decision in D.S. Nakaras case, the

right to receive pension by each of the appellants, is a

statutory right governed by the Punjab Civil Services Rules,

made under the proviso to Article 309, and in the absence of

any provision thereunder, the said pension cannot be

deducted from the salary provided for the President of the

District Consumer Forum under the Act and the Rules framed

thereunder. (3) In any view of the matter, the statutory

right of receiving pension for services rendered as District

Judges, cannot be taken away by an administrative order made

by the Governor. (4) The Consumer Protection Act and the

Rules framed thereunder, itself having provided the

conditions of service and having fixed the salary of the

President of the District Consumer Forum, the same cannot

be, in any manner altered by an administrative order.

In this view of the matter, the impugned Order dated

25.1.1996, is on the face of it illegal, inoperative and

null and void and must be struck down. Mr. Rao also

further contended that the conclusion of the High Court,

applying the principle of waiver and estoppel is wholly

untenable, since there is no question of waiver or estoppel

against any statute and the High Court committed error in

holding that the appellants knew about the condition that

the pension amount would be deducted from the

salary/honorarium payable to the President of the District

Consumer Forum.

Mr. A.G. Chaudhary, appearing for the State of Punjab,

on the other hand contended that Volume II of the Punjab

Civil Services Rules deal with the pension of an employee.

In Chapter VII of the aforesaid Punjab Civil Services Rules

of Volume II, Clause 7.18 enables the authority competent to

fix the pay and allowances of the post in which the

pensioner is re-employed to determine whether his pension

shall be held wholly or partly in abeyance. Note 3 of the

aforesaid provision, unequivocally stipulates that in

determining the pay of re-employed pensioner, the principle

to be followed is that the pay must not exceed the

substantive pay drawn immediately before retirement or the

maximum of the scale applicable to the post in which the

Government employee is re-employed whichever is less and

pension which is non-effective pay, shall not ordinarily be

allowed in addition. In view of the aforesaid provisions

and the appointment of the retired District Judges as

President of the District Consumer Forums being

re-employment, the appropriate authority was entitled to fix

their salary and fixation of their salary has been done by

the appropriate authority by issuing the Government Order

dated 25th January, 1996, and therefore, the said order is

within the powers conferred under the Punjab Civil Services

Rules and in consonance with the principles enunciated

therein. In this view of the matter, the High Court was

fully justified in not striking down the aforesaid

Government Order.

It is no doubt true, as contended by Mr. Rao the

learned senior counsel, appearing for the appellants that if

the emoluments attached to a post under any Act are fixed

under the Act, then by an executive order, the same cannot

be altered or determined contrary to the provisions of the

Act and the Rules. The District Forum is defined in

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Section 2(h) to mean a Consumer Disputes Redressal Forum

established under clause (a) of Section 9 of the Consumer

Protection Act, 1986. Section 9(a) makes it obligatory for

the State Government to establish a Consumer Disputes

Redressal Forum to be known as the District Forum in each

District of the State by a notification. Section 10(1)(a)

of the Act, provides that each District Forum shall consist

of a person who is, or has been, or is qualified to be a

District Judge, who shall be its President. Sub-section(3)

of Section 10 provides that the salary or honorarium and

other allowances payable to, and the other terms and

conditions of service of the members of the District Forum

shall be such as may be prescribed by the State Government.

Sub-section (2) of Section 30 enables the State Government

by a notification to make rules for carrying out the

provisions contained in Sub-section(3) of Section 10 along

with other provisions mentioned in the said sub-section.

Thus, the salary or honorarium and allowances payable to and

the terms and conditions of service of Members of the

District Forum could be prescribed by the State Government

by the rules framed for the purpose. In exercise of powers

under sub-section (2) of Section 30, the Government of

Punjab , Department of Food and Supplies (Consumer

Protection Branch), has made the Rules called the Consumer

Protection (Punjab) Rules, 1987. Sub-rule (1) of Rule 3

thereof prescribes that the President of the District Forum

shall receive the salary of the District judge of a District

Court if appointed on whole-time basis or an honorarium of

Rs.150/- per day if appointed on part-time basis and other

members, if sitting on whole-time basis, shall receive a

consolidated honorarium of Rs.2000/- per month and if

sitting on part-time basis, a consolidated honorarium of

Rs.100/- per day for the sitting. The aforesaid salary and

honorarium is defrayed out of the Consolidated Fund of the

State Government, as provided in sub-rule (3) of Rule 3.

These Rules of 1987, stood amended by Consumer

Protection(Punjab) Rules, 1993 by notification dated 2nd of

August, 1993. Under the amended Rules, the President of a

District Forum, if appointed on whole-time basis, is

entitled to pay in the grade of pay admissible to a Judge of

a District Court. Neither in the Act nor in the Rules

framed thereunder, there has been any indication as to

whether on being appointed as President of the District

Consumer Forum, after superannuation as a District Judge,

the pension receivable is to be deducted. The pension of

such superannuated District Judges is Governed by the Punjab

Civil Services Rules, Volume II.. Rule 1.1(a) of Punjab

Civil Services Rules Vol.II, unequivocally stipulates that

the Rules in this part regulate the grant of pensions to the

Government employees to whom the rules in Volume I of these

rules apply. The Punjab Civil Services Rules have been

issued by the Governor of Punjab under proviso to Article

309 of the Constitution. The Punjab Civil Services Rules

apply to all Government employees except those who are

specifically excluded from the operation of the Rules by a

general or special order of the competent authority.

Appendix (2) to the Rules contains a list of those employees

who have been excluded from the operation of the rules. The

expression State Government employees has been defined to

mean all persons whose conditions of service may be

regulated by the rules made by the Governor of Punjab under

proviso to Article 309 of the Constitution. It is

undisputed that the pension of a District Judge, on his

superannuation is determined in accordance with the Punjab

Civil Services Rules, Volume II. Chapter II of Volume II

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deals with general provisions relating to grant of pensions.

Section 2.1 thereof provides that every pension shall be

held to have been granted subject to the conditions

contained in Chapter VII of these rules. Chapter VII of

Volume II of the Punjab Civil Services Rules contains

Section 7.18, and the same is quoted herein below:

Section 7.18.- The authority competent to fix the pay

and allowances of the post in which the pensioner is

re-employed shall determine whether his pension shall be

held wholly or partly in abeyance. If the pension is drawn

wholly or in part, such authority shall take the fact into

account in fixing the pay to be allowed to him.

Note 3(a)(i) to aforesaid Section 7.18 is extracted

hereunder:

Note 3(a): In determining the pay of a re- employed

pensioner, the following principles shall be observed

namely:- (i) the pay must not exceed the substantive pay

drawn immediately before retirement or the maximum of the

scale applicable to the post in which the Government

employee is re-employed whichever is less and pension which

is non-effective pay, shall not ordinarily be allowed in

addition: Provided that if the pension does not exceed

Rs.50 p.m., the entire amount of pension and where it

exceeds Rs.50 per month the first Rs.50 shall not be taken

into account in fixing the pay on re- employment.

The appointment of a District Judge, after his

superannuation as the President of the District Consumer

Forum under the Consumer Protection Act, cannot but be held

to be a case of re-employment of a pensioner inasmuch as the

said District Judge is in receipt of a pension for the

services rendered as a District Judge in accordance with the

provisions contained in the Punjab Civil Services Rules,

Volume II. Since Section 2.1 of Chapter II of Volume II,

unequivocally states that every pension shall be held to

have been granted subject to the conditions contained in

Chapter VII and Chapter VII contains Rule 7.18 as well as

Note 3(a)(i), which have been extracted before, the

conclusion is irresistible that the appropriate authority

will have to decide the pay and allowances, which the

retired District Judge is entitled to receive on being

appointed as the President of the District Forum

notwithstanding the fixation of such pay under the Rules

framed under Consumer Protection Act and while fixing the

same, the principle underlined in Note 3(a)(i) has to be

followed. This being the position, we see no infirmity with

the Government Order dated 25th of January, 1996 and under

the said notification the salary of re-employed District

Judges as President of the District Consumer Forum, have

rightly been fixed, taking into account the pension, which

they are in receipt of, as retired District Judges. The

contention of Mr. Rao that the salary fixed under the Act

and the Rules framed thereunder is being altered by an

administrative order is of no force, in view of the legal

provisions enumerated above and in fact, it is the provision

of the Punjab Civil Services Rules, dealing with the salary

of re-employed pensioners, which governs the field. The

other contention on the basis of the judgment of this Court

in D.S. Nakara, that pension is not a bounty is also of no

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consequence. In the aforesaid premises, we do not find any

legal infirmity with the Judgment of the High Court,

requiring our interference under Article 136 of the

Constitution. These appeals accordingly fail and are

dismissed.

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